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Selected cases

High Court of Australia · [2023] HCA 27

Qantas v TWU

A High Court adverse action case about outsourcing ground handling work and preventing future workplace rights under the Fair Work Act.

High Court of Australia13 Sept 2023

Plain-English explainers, not legal advice. Check the linked official source before you rely on a specific section, and get advice for your situation.

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Quick read

  • Major workplace restructures need a clean decision record.
  • A High Court adverse action case about outsourcing ground handling work and preventing future workplace rights under the Fair Work Act.

Use this to check

  • Adverse action risk can apply to future or contingent workplace rights.
  • Commercial reasons should be documented clearly and separately from prohibited reasons.
  • Senior decision-maker evidence matters when a restructuring is challenged.

Decision snapshot

  1. 1

    What happened

    • Qantas decided to outsource ground handling operations at 10 Australian airports during the COVID-19 period.
    • The affected employees worked for Qantas and Qantas Ground Services, and many were members of the Transport Workers' Union.
    • Qantas accepted that the outsourcing was adverse action, but argued it was driven by commercial reasons and that the relevant workplace rights were not presently exercisable when the decision was made.
  2. 2

    What the court had to decide

    • The High Court had to decide whether section 340(1)(b) of the Fair Work Act can prohibit adverse action taken to prevent the exercise of workplace rights that may arise in the future, rather than only rights already capable of exercise at the time of the decision.
  3. 3

    What the court decided

    • The High Court unanimously dismissed Qantas' appeal.
    • It held that the prohibition can apply where adverse action is taken to prevent the exercise of a workplace right that may arise in the future, and Qantas had not displaced the statutory presumption about its reasons.

Practical impact

Practical read

  • Major workplace restructures need a clean decision record.
  • If preventing employees from exercising future workplace rights is a substantial and operative reason for the decision, commercial pressure will not necessarily save it.

Useful next steps

  • Adverse action risk can apply to future or contingent workplace rights.
  • Commercial reasons should be documented clearly and separately from prohibited reasons.
  • Senior decision-maker evidence matters when a restructuring is challenged.
  • Record the commercial reasons for restructuring before the decision is made.
  • Check whether affected employees have current or future bargaining or industrial rights.

Practical read

Qantas v TWU is a restructuring case with a hard workplace-law edge. A business can have real commercial reasons to outsource, automate or restructure. The problem is when the decision record also shows a substantial reason connected to stopping employees from using workplace rights, such as protected industrial action or bargaining rights that may arise later.

For business owners, the useful lesson is discipline. If you are making a major workforce decision, write down the commercial reasons clearly, keep the people involved aligned, and get advice before employee rights, bargaining, union activity or protected action are part of the background.

Checks to run

Key points

  • Record the commercial reasons for restructuring before the decision is made.
  • Check whether affected employees have current or future bargaining or industrial rights.
  • Keep board papers, emails and talking points consistent with the lawful reason.
  • Get advice before outsourcing work during bargaining, disputes or union activity.

Key takeaways

  • Adverse action risk can apply to future or contingent workplace rights.
  • Commercial reasons should be documented clearly and separately from prohibited reasons.
  • Senior decision-maker evidence matters when a restructuring is challenged.

Related topics

Employment & Workplace

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